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Daily Digest

Feb. 15, 2016

THE FOUNDATION

Washington’s Birthday

In some circles, today is observed as “Presidents’ Day,” jointly honoring Presidents George Washington and Abraham Lincoln (some even extend the commemoration to all presidents), but it is still officially recognized as the anniversary of Washington’s birth. That is how we mark the date in our humble shop. (Washington’s actual birthday is Feb. 22, and this is one of those rare years when the official observance is a full week early.)

Read more on this special holiday here.

FEATURED RIGHT ANALYSIS

“His integrity was most pure, his justice the most inflexible I have ever known, no motives of interest or consanguinity, of friendship or hatred, being able to bias his decision. He was indeed, in every sense of the words, a wise, a good, and a great man.” —Thomas Jefferson, 1814

Justice Antonio Scalia — Farewell Nino

By John J. Bastiat

Our Republic has lost one of its most articulate defenders of Liberty and Rule of Law: Justice Antonio Scalia.

“Nino” to his close friends, Justice Scalia was the greatest Supreme Court jurist of modern times, and one of the greatest of all time. To say he will be missed is a gross understatement. In the words of his friend Paul J. Larkin Jr., a fellow at The Heritage Foundation, “More than 100 men and women have been justices of the Supreme Court. All decided the outcome of individual cases and made small changes in the law [but few] changed the course of the law. … Scalia taught us that the law matters, that the law is the written word, and that the written word takes its meaning from how history understands it, not what we wish it might mean.”

Justice Scalia was nominated by President Ronald Reagan in 1986 and affirmed soon thereafter by the Senate. He adhered strictly to the doctrine of constitutional originalism — the standard our Founders prescribed, reading the plain language of the U.S. Constitution for its original intent, then applying the historical context of the drafters when the plain-language meaning is not readily apparent. His constructionist interpretation led to a modern juridical revolt against activist judges, those who, as Thomas Jefferson warned, would treat “the Constitution [as] a mere thing of wax … which they may twist and shape into any form they please.” Scalia was an effective check on those activists endeavoring to usurp individual freedoms by promoting the errant notion of a “living constitution,” treating it as “a mere thing of wax.”

As a result of the more-than-century-long assault on the Constitution by activist and statist judges, Scalia’s “back-to-the-future” return to traditional adherence to its original meaning was seen by many as “radical.” On the contrary, it was simply rational — a quality the Supreme Court is in short supply of these days, especially now that it has lost its chief exponent of rationality.

The best way to pay proper tribute to Justice Scalia is by citing some of his public remarks and opinions from the bench (cases are noted below) in affirmation and defense of our Constitution.

“Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because they are considered, in the traditional phrase, ‘contra bonos mores,’ i.e., immoral. (Barnes v. Glen Theatre, Inc., 1991)

"To pursue the concept of racial entitlement — even for the most admirable and benign of purposes — is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.” (Adarand Constructors v. Pena, 1995)

“The Court must be living in another world. Day by day, case by case, it is busy designing a Constitution for a country I do not recognize.” (Board of County Commissioners, Wabaunsee County, Kansas v. Umbehr, 1996)

“A Bill of Rights that means what the majority wants it to mean is worthless.” (2000)

“It is difficult to maintain the illusion that we are interpreting a Constitution, rather than inventing one, when we amend its provisions so breezily.” (2003)

“If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.” (2005)

“If you think aficionados of a ‘living constitution’ want to bring you flexibility, think again. … If we’re picking people to draw out of their own conscience and experience a ‘new’ Constitution, we should not look principally for good lawyers. We should look to people who agree with us. When we are in that mode, you realize we have rendered the Constitution useless.” (2005)

“The argument of flexibility goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break. "But you would have to be an idiot to believe that. The Constitution is not a living organism, it is a legal document. It says something and doesn’t say other things.” (2006)

“Undoubtedly some think that the Second Amendment is outmoded… [W]hat is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.” (District of Columbia v. Heller, 2008)

“Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long imposing these demands on society.” (2011)

“A man who has made no enemies is probably not a very good man.” (2012)

“Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved… And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites. I dissent.” (King v. Burwell, 2014)

“Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact — and the furthest extension one can even imagine — of the Court’s claimed power to create ‘liberties’ that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves… The world does not expect logic and precision in poetry or inspirational pop philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.” (Obergefell v. Hodges. 2015)

Justice Scalia’s death will change the dynamic of the current presidential primaries — indeed, the entire election cycle. We’ve argued before how important this election really is when it comes to nominations. That prediction is now more acute.

When Obama nominates a new court candidate and attempts to ram that nominee through the Republican-led Senate, that will create considerable discord. Senate Majority Leader Mitch McConnell has stated he opposes confirming a new justice until the election because “the American people should have a voice in the selection of their next Supreme Court Justice.” Indeed, in more than eight decades, no president has nominated a candidate for the Supreme Court in a presidential election year.

Within hours of Scalia’s death, Democratic National Committee CEO Amy Dacey insisted, “Barack Obama, has been very clear: He’s going to fulfill his constitutional obligation and nominate our next Supreme Court justice. … [C]onservatives in Congress should allow President Obama to do what is his right and responsibility — name the next Supreme Court justice.”

Why? Obama has not “fulfilled his constitutional obligations” in any other respect, and he has never honored his oath “to Support and Defend” our Constitution and the Liberty it enshrines.

It is notable that, of the 16 presidents who served in the Senate, only one, Barack Obama, endeavored to filibuster a Supreme Court nomination — the 2006 nomination of now-Justice Samuel Alito. In 2007, more than 18 months before the 2008 presidential election, Demo Sen. Chuck Schumer declared, “We should not confirm any Bush nominee to the Supreme Court.”

As for Justice Scalia himself, he once remarked, “I would not like to be replaced by someone who immediately sets about undoing what I’ve tried to do for 25–26 years. I mean, I shouldn’t have to tell you that, unless you think I’m a fool.”

Today, our thoughts and prayers are with Justice Scalia’s wife, Maureen, their nine children, and the rest Justice Scalia’s loved ones, as we remember and honor his legacy. Nino, you will be missed: “Well done, good and faithful servant.” (Matthew 25:23).

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TOP RIGHT HOOKS

The South Carolina Cage Fight

Saturday night’s Republican debate in South Carolina featured some of the most vitriolic fratricidal infighting yet. Or as political analyst Charles Krauthammer wryly observed, “We went here from WWE to the UFC. This was a cage fight of the sort that I don’t think we have seen at the presidential level before.” Ted Cruz and Marco Rubio got rather ugly at times. Silver-spooners Jeb Bush and Donald Trump went after each other even more harshly. Of course, Trump went after everybody, from George W. Bush to the audience, and he was generally more angry and agitated than we’ve seen him. The end result was that John Kasich looked like the most reasonable man on stage, usually aiming his fire at Democrats. (If we hear Ben Carson offer the “thanks for including me in the debate” line one more time…)

At times, we weren’t sure it was a Republican debate. Despite his civil demeanor, Kasich argued for the virtues of ObamaCare/Medicaid expansion, while Trump commended the wonderful efforts of Planned Parenthood and sounded like a Democrat on Social Security. Worse, Trump practically made an in-kind contribution to MoveOn and other leftist groups with his 9/11-truther and Bush-lied-on-Iraq nonsense. Trump decidedly did not get Iraq right, and he slandered most Republican voters with his false line of attack. Fortunately, Rubio did get it right when he defended Bush for using the intelligence we had at the time, and when he faulted Bill Clinton for his failure to follow intelligence and take out Osama bin Laden. Too few Republicans are willing to make that case.

National Review’s Jim Geraghty sums it up: “If the Republican Party wants to nominate a man who thinks Bush could have prevented 9/11 but chose not to, who knew Iraq had no WMDs and lied the country into war anyway, who sneers and shouts and bellows and interrupts and accuses everyone else of lying… if a majority of South Carolina Republicans look at all that and give it the thumbs up … then yeah, maybe it isn’t my party anymore.”

This coming Saturday’s South Carolina primary could thin the field further. We certainly hope that’s the case, anyway, because it’s time to begin consolidating the not-Trump vote.

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Trump’s Political Attack on Cruz’s Citizenship

Donald Trump is bluffing. On Friday, ahead of the GOP debate, Trump tweeted, “If @TedCruz doesn’t clean up his act, stop cheating, & doing negative ads, I have standing to sue him for not being a natural born citizen.” Apparently, Cruz has been bringing the heat to Trump’s campaign, with his attack ads in South Carolina criticizing the real estate mogul for abusing eminent domain — using the government to take private property to give to another private party for personal use. In response to Trump’s previous rhetoric on Cruz’s status, a Houston-based attorney filed a complaint in the federal court system, petitioning the Supreme Court to take up the question of what defines a natural-born citizen. Attorney Newton Schwartz wrote in his complaint, “This 229-year question has never been pled, presented to or finally decided by or resolved by the U.S. Supreme Court. Only the U.S. Supreme Court can finally decide, determine judicially and settle this issue now.” We do have an answer to Cruz’s citizenship, though. The ballot commission in New Hampshire and the Illinois Board of Elections ruled that yes, Cruz is eligible to hold the office of president.

The key word in Trump’s threat is “If.” Trump’s move to sue is only dependent on Cruz’s campaigning style and his standing in the polls. If Trump actually thought he had a legal case, he would have already sued.

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Shock Study: Earth Acts Like a Sponge!

This should help coastal residents sleep a little better, at least for a while longer. According to nasa.gov, “A new study by scientists at NASA’s Jet Propulsion Laboratory in Pasadena, California, and the University of California, Irvine, shows that while ice sheets and glaciers continue to melt, changes in weather and climate over the past decade have caused Earth’s continents to soak up and store an extra 3.2 trillion tons of water in soils, lakes and underground aquifers, temporarily slowing the rate of sea level rise by about 20 percent.”

First, a quick primer. The hydrologic cycle occurs when precipitation that is deposited over land through the process of ocean evaporation gets recycled back into the ocean via tributaries. Minor disruptions in that process such as through “persistent regional changes in soil moisture or lake levels,” says NASA, can alter “the rate of sea level rise from what we would expect based on ice sheet and glacier melt rates.” But what scientists haven’t been able to determine until now was how much water runoff gets sucked up by the earth. Satellite measurements now provide a clue. According to lead author J.T. Reager, “We always assumed that people’s increased reliance on groundwater for irrigation and consumption was resulting in a net transfer of water from the land to the ocean. What we didn’t realize until now is that over the past decade, changes in the global water cycle more than offset the losses that occurred from groundwater pumping, causing the land to act like a sponge — at least temporarily.”

Alarmists will inevitably say this discovery doesn’t change the overall threat posed by rising sea levels, which “97% of scientists” claim is linked to man-made global warming. We have another theory: Could it possibly be that something — say, our Creator — knew something we didn’t and developed a system to handle naturally rising sea levels? Imagine that.

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MORE ORIGINAL PERSPECTIVE

BEST OF RIGHT OPINION

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TOP HEADLINES

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OPINION IN BRIEF

George Will: “Students of the court understand that, given Harry Reid’s demonstrated disdain for Senate rules, if Republicans had not won Senate control in the 2014 elections, he as majority leader would very likely now extend the institutional vandalism he committed in 2013. Then he changed Senate rules, by a simple majority vote and in the middle of a session, to prevent filibusters of judicial nominees other than Supreme Court nominees. This enabled Obama to pack the nation’s second-most important court, that of the U.S. Circuit for the District of Columbia. Were Reid still majority leader, the Senate’s only rule would be the whim of the majority of the moment, and his caucus would promptly proscribe filibusters of Supreme Court nominees. One consequence would be this: America today is one Supreme Court vote away from a radical truncation of the First Amendment’s protection of freedom of speech. A Democratic president in 2017 will nominate to replace Scalia someone pledged to construe the amendment as permitting Congress to regulate political campaign speech, which would put First Amendment jurisprudence on a slippery slope to regarding all speech as eligible for regulation by the administrative state. Scalia lived 27 years after the person who nominated him left office, thereby extending the reach of Ronald Reagan’s presidency and reminding voters of the long-lasting ripples that radiate from their presidential choices. A teacher, wrote Henry Adams, attains a kind of immortality because one never knows where a teacher’s influence ends. Scalia, always a teacher, will live on in the law and in the lives of unnumbered generations who will write, teach and construe it.”

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SHORT CUTS

The Gipper: “You and I have a rendezvous with destiny. We will preserve for our children this, the last best hope of man on earth, or we will sentence them to take the first step into a thousand years of darkness.”

Endorsements: “You will never, ever have to worry about [a president moving to the left] with Ted Cruz. Let me say one thing: If conservatism is your bag, if conservatism is the dominating factor in how you vote, there is no other choice for you in this campaign than Ted Cruz, because [he] is the closest in our lifetimes we have ever been to Ronald Reagan. In terms of doctrinaire, understandable, articulated, implementable conservatism, there’s nobody closer.” —Rush Limbaugh

Braying Jackass: “The World Trade Center came down during [George W. Bush’s] reign. … That’s not keeping us safe.” —Donald Trump at Saturday’s GOP debate (“Had bin Laden been taken out [when Bill Clinton had the chance], it is doubtful that 9/11 would have happened, at least on September 11th of 2001, because al-Qaida would not have been in the position to be able to carry something like that out.” —Marco Rubio)

Prepare for battle: “Whatever precedent says, if Republicans truly believe Obama has displayed a contempt for the Constitution, they have a moral obligation to reject his choice — whether it’s someone who argues in favor of book banning or enables abusive power. Because we’re not talking about good-faith disagreements over what the Constitution says anymore, we’re talking about a party that believes enumerated powers stand in their way.” —David Harsanyi

Alpha Jackass, part I: “Dedicating the rest of this weekend’s marital sodomy to the memory of Antonin Scalia.” —Dan Savage

Alpha Jackass, part II: “Justice Scalia Dead Following 30-Year Battle With Social Progress” —headline from satirical website The Onion

Dezinformatsia: “Supreme Court Conservative Dismayed Liberals.” —Washington Post front-page headline

Demo-gogues: “I plan to fulfill my constitutional responsibilities to nominate [Justice Scalia’s] successor in due time. There will be plenty of time for me to do so, and for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote. These are responsibilities that I take seriously, as should everyone. They’re bigger than any one party. They are about our democracy.” —Barack Obama

And last… “Someone on this stage will get to choose the balance of the Supreme Court, and it will begin by filling this vacancy that’s there now. And we need to put people on the bench that understand that the Constitution is not a living and breathing document. It is to be interpreted as originally meant.” —Marco Rubio

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Semper Vigilans Fortis Paratus et Fidelis!
Managing Editor Nate Jackson

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